Recent Developments in EU Investment Agreements

July 14, 2014

I. Introduction: the new EU competence over foreign direct investment

On 16 April 2014, the European Parliament adopted a legislative resolution[1] on the proposal for a regulation establishing a framework for managing financial responsibility linked to investor-state dispute settlement (ISDS) tribunals established by international agreements to which the European Union is a party (COM(2012)335)[2].

This is a further step in defining European international investment policy, clearing the way for the gradual replacement of the bilateral investment treaties (BITs) of the EU Member States by EU agreements with non-EU countries on the protection of foreign investment.

This proposed regulation will clarify the division of financial responsibility between the Union and Member States when the Union or a Member State is sued by a non-EU investor in the context of ISDS proceedings. With the entry into force of the Lisbon Treaty, foreign direct investment (FDI) was added to Common Commercial Policy (CCP). Article 3 of the Treaty on the Functioning of the European Union (TFEU) stipulates that the EU will have exclusive competence in matters concerning the customs union, to which the CCP belongs, and article 206 TFEU further clarifies that by “establishing a customs union […] the Union shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers”. Article 207(1) TFEU is the central provision regarding the EU’s competence in the field of CCP. It expressly extends the scope of CCP and requires that it be based on uniform principles, adding FDI matters to treaty-making power. As regards FDI matters to be negotiated and concluded under the new CCP, the first subparagraph of article 207(4) TFEU requires the Council to “act unanimously where such agreements include provisions for which unanimity is required for the adoption of internal rules.”

These provisions correspond largely to the proposals already discussed during the drafting of an EU Constitution Treaty. Before Lisbon, investment treaties were signed by Member States and therefore any potential ISDS cases were handled nationally. But now that these treaties are being handled by the EU, a case can also be filed on the basis of European law or treaties. So new rules are needed to deal with these cases and, most importantly, to deal with any possible financial implications.

Since the Lisbon Treaty came into force, there has been growing debate between the Commission and the Member States on the appropriate division of their powers in the field of foreign investment. The EU now has the power not only to adopt secondary legislation on FDI but also to negotiate and conclude international agreements affecting FDI, in the form of Free Trade Agreements (FTAs), International Investment Agreements (IIAs) or BITs.

When EU Member States realised that the EU had gained a broad new investment competence as a result of the express inclusion of FDI in treaty-making powers relating to CCP, many of them tried to defend the remaining powers which they enjoyed as part of their national investment protection policies. This also led to lively academic debate about the scope of the new EU investment powers. On the one hand, it was argued that the EU’s investment powers would be limited to aspects concerning the admission of investments and not extend to traditional investment protection once an investment was made. On the other hand, the express choice of the term FDI was interpreted as limiting the EU’s powers to FDI, excluding portfolio investments traditionally covered by modern investment treaties. Both limitations would lead to a situation of de facto shared control between the EU and its Member States, as they would require so-called mixed agreements to be negotiated and concluded by both the EU and its Member States. Thus, the question was anything but ‘academic’.

According to the European Commission, the EU’s investment power is not limited to access/admission questions. It also covers the pre-establishment and post-establishment phase and the EU can therefore conclude treaties containing the traditional substantive treatment obligations of IIAs and procedural guarantees in the form of state-to-state dispute settlement and ISDS, although ISDS is adapted so that the EU can (partly) replace the Member as respondent. The European Commission also rejects a narrow interpretation of its investment powers, arguing that these powers are not restricted to FDI but include an implied power in relation to the discipline of portfolio investments.

Much time and effort were spent on both sides in claiming and defending treaty-making power as regards BITs with third states, lessening the Commission’s exercise of its new competence in the field of foreign investment.

In actual fact, the question of competence is still open and the inclusion of an ISDS mechanism in IIAs is surrounded by questions and controversy, also given the difficulty of access to the International Centre for Settlement of Investment Disputes (ICSID) and ICSID additional-facility rules[3].

In July 2010, two Commission documents were made public. One was a draft regulation of the European Parliament and the Council establishing transition arrangements for BITs between Member States and third countries; the other was a communication outlining the EU’s future investment policy. These were followed by a Commission proposal in the summer of 2012 for a regulation addressing the issue of allocating financial responsibility between the EU and its Member States in case of investment arbitration.

On December 12 2012, the European Union issued Regulation (EU) No. 1219/2012[4] (the “1219/2012 Regulation”) establishing transitional arrangements for BITs between Member States and third countries. The Regulation, which entered into force on 9 January 2013, provides investors with clarifications on the status of BITs entered into by EU Member States and non-EU States (“extra–EU BITs”) following the Lisbon Treaty.

With regard to the European Parliament proposal for a regulation establishing a framework for managing financial responsibility linked to investor-state dispute settlement, this provides the legal financial framework for the allocation of responsibilities between the EU and its Member States.

II. A new framework for financial responsibility linked to ISDS tribunals established by international agreements to which the EU is a party

Given that the EU now has competence to conclude FDI international agreements, the EU has to bear the international responsibility for the violation of investor rights included in international agreements to which the EU is a party. Accordingly, as mentioned above, on 16 April 2014 the European Parliament approved at first reading the proposal for a regulation establishing a framework for managing financial responsibility linked to ISDS tribunals established by international agreements to which the EU is a party, although it has made some amendments to the version of the proposal presented by the European Commission in 2012. The aim of this proposal is to establish the proper allocation between the EU and its Member States of liability for damage caused to a foreign investor (i.e. a non-EU investor) on the territory of the EU. Indeed, in the complex situation created by the distribution of competences, it is not easy to identify who is responsible for injury caused to a foreign investor. In short, the purpose of the proposed regulation is to protect inbound FDI on the territory of the EU, given that this new legal framework will identify who is financially responsible for damage caused to a foreign investor.

The scope of this proposal is limited to the international agreements to which the EU is a party. Therefore the new regulation will apply to all IIAs that include a provision on ISDS negotiated and concluded by the EU in the future, given its new exclusive competence on FDI. Although the EU has had exclusive competence to sign international agreements affecting FDI since 1 December 2009 – when the Lisbon Treaty came into force – EU institutions had already concluded international agreements containing provisions on investments. This was possible because of the doctrine of implied powers, whereby the EU is competent to act internationally also in fields where such a competence is not provided by the Treaties, insofar as this external competence is essential to exercise internal competences efficiently and to pursue the objectives of the Treaties. This doctrine was developed by the case law of the CJEU (31 March 1970, Case 22/70, AETS) and is now incorporated into the TFEU at article 3(2).

In the recent past five EU international agreements also covering investment treatment have been concluded: the Energy Charter Treaty (ECT) (1991), the Trade, Development and Cooperation Agreement with South-Africa (1999), the Economic Partnership Agreement with Mexico (2000), the Association Agreement with Chile (2002), and the FTA with South Korea (2011). All these agreements can be considered as FTAs and, as they regulate a wide range of subjects, some of which fall within the scope of the competences of the Member States, they have been concluded in the form of mixed agreements signed by the EU and its Member States. Besides these FTAs, the EU is about to conclude the negotiation of an international trade agreement with Canada: the CETA (Comprehensive Economic and Trade Agreement). EU and USA are currently negotiating a Transatlantic Trade and Investment Partnership (TTIP). As a part of its ongoing efforts to make the negotiations as open and transparent as possible, on 27 March 2014 the European Commission has launched a public consultation on ISDS in the TTIP[5].

Although all these FTAs include some provisions on investments, not all of them have ISDS mechanisms. For instance, the FTAs with Mexico and Chile do not have ISDS clauses, whereas the ECT, the FTAs with South Africa and South Korea, and the CETA include a chapter on ISDS. Therefore, the proposed regulation on financial responsibility linked to ISDS will apply not only to future IIAs, FTAs or BITs − incorporating ISDS provisions − that the EU will conclude, but also to these existing FTAs with ISDS clauses. However, the proposed regulation will apply only “in respect of disputes where the submission of a claim to arbitration has been lodged after the entry into force of the regulation which concern treatment afforded after the entry into force of the regulation” (article 24).

III. An overview of the proposed regulation on financial responsibility linked to ISDS

With regard to the exact scope of the exclusive external competence of the EU in investment matters, it is expressly stated in article 1 (Scope) of the proposed regulation on financial responsibility that the regulation does not prejudice the division of competences established by the TFEU. This ‘neutral’ approach to the question is confirmed by the Joint Declaration by the European Parliament, the Council and the Commission annexed to the legislative resolution. All that, despite the Commission’s firm statement that the Union has exclusive competence to conclude agreements covering all matters relating to foreign investment (COM(2012)335).

In the proposed regulation the general criterion for apportioning financial responsibility between the EU and the Member States is the origin of the treatment that has allegedly injured a foreign investor on the territory of the EU (article 3). If the treatment originates in an act of the institutions, bodies or agencies of the EU, the EU itself is financially responsible for the damage caused to the investor. If the treatment originates in an act of the institutions, bodies or agencies of a Member State, that Member State has to bear financial responsibility for its act.

Nevertheless, the proposed regulation includes an exception to this general rule: if the treatment by a Member State is required by EU law, the financial responsibility for that treatment is attributable only to the EU. The reason for this exception lies in the principle of the conferral of powers; in other words, if the EU has a competence in the field to which the treatment by a Member State belongs and that Member State acts in conformity with EU law, the EU is the sole party responsible for the action of that Member State. As the European Commission stated in the Explanatory Memorandum, “where the treatment of which an investor complained originates in the institutions of the Union (including where the measure in question was adopted by a Member State as required by Union law), financial responsibility should be borne by the Union” (COM(2012)335).

This exception is in line with the work of the International Law Commission (ILC). The draft articles on the responsibility of international organisations proposed by the ILC have been included in a resolution of the General Assembly of the United Nations (UN) adopted on 9 December 2011[6]. Although, under international law, the general rule governing the attribution of international responsibility to an international organisation is the attribution of conduct, article 64 of the articles on the responsibility of international organisations provides that “[t]hese articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or attribution of the international responsibility of an international organisation, or of a State in connection with the conduct of an international organization, are governed by special rules of international law. Such special rules of international law may be contained in the rules of the organisation applicable to the relations between an international organisation and its members”. In short, international law recognises the existence of special rules for the attribution of international responsibility to certain international organisations which are “providing for integration”[7], such as the EU, which is mentioned in the last ILC commentary to the articles[8] as an organisation to which special rules should apply. As we can see, the development of international law does not preclude that the international responsibility and consequent financial responsibility of the EU can be based on the principle of the conferral of powers between the EU and its Member States, instead of the criterion of attribution of conduct.

The proposed regulation introduces rules for the conduct of disputes concerning treatment afforded by the Union (article 4) or by a Member State (articles 6 to 10). With reference to the conduct of an ISDS arbitration proceeding, the general rule laid down by the proposal is that the Member State concerned must act as respondent (article 9), except in two cases: (a) if the European Commission decides to act as respondent, because at least part of the financial responsibility has to be borne by the EU; (b) if the Member State concerned notifies the European Commission that it does not intend to act as respondent. In any event, the European Commission and the Member States concerned have to act in accordance with the principle of sincere co-operation (article 6) referred to in article 4(3) of the Treaty on the European Union in order to defend and protect the interests of both the Union and the Member State itself. Articles 11 and 12 govern the conduct of arbitration proceedings by the Union. Moreover, the proposal includes rules for the settlement of disputes and for the payment of the final award (articles 13 to 16 and 17 to 21 respectively). However, regardless of who is the respondent, the EU and the Member State involved in the dispute have to reach an agreement with regard to financial responsibility. It is likely that this liability will be shared between the EU and its Member States in most cases. In the view of EU institutions this agreement between the EU and the Member State concerned is important because, as the European Commission stated in the Explanatory Memorandum (COM(2012)335), it is “appropriate to put forward pragmatic solutions which ensure legal certainty for the investor and provide all the necessary mechanisms to allow for the smooth conduct of arbitration and, eventually, the appropriate allocation of financial responsibility”. Should the EU be held liable, the claimant who has obtained a final award may present a request to the Commission for payment of the award (article 18). As stated in the Explanatory Memorandum, the EU “would honour such obligation”. There are no recorded cases of the Union or its Member States refusing to respect an award; however, if an investor were to consider it necessary to seek recognition or enforcement of an award, it would need to seek such recognition or enforcement via the courts of the Member States. Article 1 of the Protocol (No 7) on the Privileges and Immunities of the European Union would apply and the investor might have to go to the CJEU, which, in turn, would apply the standard approach on sovereign immunity.

IV. Extra-EU BITs concluded by EU Member States and EU international responsibility

Before the Lisbon Treaty came into force in 2009, the Member States of the EU had concluded more than 1,400 BITs with third countries (more properly, non-EU States). These BITs will be replaced by BITs, IIAs or FTAs with investment clauses negotiated and concluded by the EU, given its exclusive competence over FDI. In this respect, the European Parliament and the Council have already passed the 1219/2012 Regulation establishing transitional arrangements for BITs between Member States and third countries. This Regulation provides the European Commission with the power to check the compatibility of these BITs with EU law and establishes a legal framework for substituting the old BITs of Member States with new IIAs concluded by the EU.

Apparently, the proposed regulation on financial responsibility linked to ISDS will not apply to extra-EU BITs concluded by Member States, which are not international agreements to which the EU is a party. Nevertheless, considering the afore-mentioned article 64 of the ILC’s articles on the international responsibility of international organisations, it cannot be ruled out that in certain circumstances the EU may be considered internationally responsible for the conduct of a Member State which causes an injury to a foreign investor of a country with which that Member State (but not the EU) has concluded a BIT. Indeed, if that Member State does not observe a right granted to the foreign investor by the BIT because it has to comply with EU law, it is not unlikely that the international responsibility and consequent financial responsibility may be attributable to the EU. The special rules of article 64 seem to have an extremely wide scope[9] encompassing all the situations in which a Member State of an international organisation acts in accordance with a binding act of that organisation[10]. This position is the same adopted by the European Commission, according to whom “the Union bears, in principle, international responsibility for the breach of any provision within the Union’s competence” (COM(2012)335). In its resolution of 16 April 2014 the European Parliament expressed the same opinion, stating that “[i]nternational responsibility for treatment subject to dispute settlement follows the division of competence between the European Union and Member States. As a consequence, the Union will in principle be responsible for defending any claims alleging a violation of rules included in an agreement which fall within the Union’s exclusive competence, irrespective of whether the treatment at issue is afforded by the Union itself or by a Member State” (Recital (3). Moreover, as the Special Rapporteur (Gaja, Second Report on responsibility of international organizations) stated in 2004, “[a]lthough generally the organization’s responsibility depends on attribution of conduct […] this does not necessarily occur in all circumstances”. Should this interpretation of the international responsibility of the EU be right, both the EU and Member States could be brought before an ISDS tribunal to respond to an investor’s claim.

V. What kind of ISDS tribunals for EU international agreements?

It is known that the EU cannot be part of arbitration before the ICSID which is the main ISDS mechanism now operating and which is incorporated into the World Bank Group (WB). The ICSID Convention (1966) can only be signed by States that are members of the WB or party to the Statute of the International Court of Justice (ICJ). The EU is neither of these (COM(2010)343[11]) and statehood is a clear requirement for adherence to the ICSID Convention[12]. On May 23, 2014 the European Commission sought to intervene as a third-party (article 37 of Arbitration Rules) in an ongoing ICSID proceeding under the BIT between Spain and Guatemala, citing its new competence for extra-EU investment obligations, and claiming its “systemic interest” in the interpretation of investment agreements concluded by EU Member States. On June 9, 2014 the European Commission’s application was rejected. In fact, the EU intervention did not meet the criteria set out in the ICSID rules for such interventions; in particular, application was not presented in the format contemplated under the ICSID rules and came too late, after the final hearings[13].

To be part of an ICSID ISDS procedure the State of the investor and the State to the dispute both have to be members of the WB or party to the ICJ Statute. Nevertheless ICSID has another tool for the resolution of disputes: the ICSID additional-facility rules. Since 1978 these have allowed ICSID to manage disputes even if the State of the investor or the State to the dispute is not a member State of the WB. In such cases the ICSID Convention is not applicable but, like the Convention, the additional-facility rules only apply to States and not to international organisations such as the EU. Apart from ICSID, the EU can be part of an international investment arbitration before the Stockholm Chamber of Commerce (SCC), before an ad hoc tribunal conducted under the rules of the United Nations Commission on International Trade Law (UNCITRAL) and also before ad hoc tribunals conducted in accordance with both the international agreements that establish them and international law. According to the United Nations Conference on Trade and Development (UNCTAD), in 2013 ICSID managed 55% of the world’s investor-state disputes, while ad hoc tribunals applying UNCITRAL rules managed 35%. The SCC managed only 5% of these disputes and the remaining 5% were managed by other ad hoc tribunals[14].

With regard to the three FTAs concluded by the EU and its Member States and including ISDS clauses, we can divide these provisions into two categories: narrow ISDS clauses and broad ISDS clauses. While the FTAs with South Africa and South Korea provide for very limited ad hoc arbitration tribunals with jurisdiction over certain issues only (procurement contracts and telecommunications investment), the ECT countenances a wide range of institutionalised arbitration tribunals with extended jurisdiction, such as ICSID tribunals, ICSID additional-facility tribunals, ad hoc arbitrations conducted under UNCITRAL rules and the arbitration tribunals of the SCC. Of course, recourse to ICSID means that the ICSID Convention should be modified so that it also applies to the EU. The (preparatory) political agreement of CETA has already been signed by the EU and Canada and leaked documents allow us to include CETA in the same category as the ECT. The CETA allows claimants to bring their case before ICSID tribunals, ICSID additional-facility tribunals, ad hoc arbitration tribunals which follow UNCITRAL rules, and other ad hoc arbitration tribunals[15]. ECT and CETA include ICSID and ICSID additional-facility rules because they are mixed agreements signed by the EU and its Member States; therefore a foreign investor can obviously sue an EU Member State (but not the EU) before ICSID, following the process established by the ICSID Convention or the process established by the additional-facility rules. All the cited FTAs include an ISDS mechanism alternative to arbitration, such as consultation and mediation, before the ICSID Secretariat and before ad hoc consultation or mediation bodies.

After some initial reluctance, the European Commission eventually weighed in favour of including ISDS in future IIAs entered into under its new competence (COM(2010)343). The European Parliament, though expressing “its deep concern regarding the level of discretion of international arbitrators to make a broad interpretation of investor protection clauses, thereby leading to the ruling out of legitimate public regulations”, also took “the view that, in addition to state-to-state dispute settlement procedures, investor-state procedures must also be applicable in order to secure comprehensive investment protection” (European Parliament Resolution of 6 April 2011 on the Future European Investment Policy (2010/2203(INI)[16]). Its criticisms are based on a lack of both transparency, which commercial arbitration emphasis on confidentiality entails, and consistency in decisions, as a direct result of the decentralised nature of arbitration and the relative lack of review. One solution might be to establish an appellate process for a review of arbitral awards. The Commission has stated that “appellate mechanisms” should be considered together with or as an alternative to “quasi-permanent arbitrators” (COM(2010)343). The European Parliament, deeply concerned about the degree of discretion left to arbitrators, has expressly called for the inclusion of “the opportunity of parties to appeal” (2010/2203(INI)). In other words, ISDS should be included in future EU IIAs only where it is justifiable, that is when it is an agreement with a third country that does not have a properly-functioning judicial system, where the rule of law is doubtful. The identity of the EU counter-party would probably become the determining element in deciding whether or not to include ISDS mechanism in future investment agreements. That would mean a significant change in direction from the pattern established by previous Member State BIT procedure and the question is still open.

In conclusion, on its own the EU can only conduct ad hoc arbitrations proceedings and disputes before the SCC, while EU Member States have the opportunity to conduct any kind of investor-state arbitration proceeding, including ICSID proceedings. Last year the European Commission declared that in any case its ISDS policy will be carried out in the light of the new UNCITRAL rules[17]. Concerning the CETA and the TTIP between the EU and the USA, it is noteworthy that the European Commission has declared that it intends to create an appellate body for investor-state disputes[18][19], a quasi-permanent tribunal which can review arbitral awards at first instance[20]. However, it is still unclear what kind of relation would exist between this possible appellate body and the other investor-state arbitrators mentioned above, especially ICSID tribunals, given that article 53(1) of the ICSID Convention provides that “[t]he award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention”.

VI. Controversial issues

As illustrated above, the European Commission is currently and gradually making use of its new investment treaty-making power within the boundaries of EU investment policy. However, there are still many open issues which deserve to be studied in more detail.

To touch on just some of these, the precise scope of exclusive IIA powers remains unclear, especially with regard to the inclusion of provisions on post-establishment measures and on ISDS. From a practical perspective, investment agreements can be expected to be mixed agreements, signed by both the EU and Member States concerned. In terms of external relations with third countries, mixed agreements would avoid the need to specify spheres of competence; in terms of internal relations between the EU and its Member States, responsibility for breaches of the agreements would be organised according to the criterion of attribution of conduct and the principle of the conferral of powers. Another set of open issues includes the problems raised by the Commission’s Communication of July 2010, “Towards a Comprehensive European Investment Policy” (COM(2010)343) and the European Parliament’s resolution on this (2010/2203(INI)). In particular, there is a need for a higher level of definition of substantive treaty standards, greater transparency when initiating proceedings, access to documents, open hearings, publication of awards, greater consistency of outcomes through clearer rules of interpretation, and the introduction of an appeal mechanism. Another highly contentious issue concerns the compatibility of ISDS itself with the system of legal protection afforded by the CJEU. According to current rules, a European investor is under an obligation first to attempt to obtain the annulment of the illegal act of the Member State or Union that affects its investment before being able to recover the losses suffered; in contrast, most existing BITs do not require foreign investors to exhaust local remedies and allow them directly to bring a claim for all damages before an international tribunal, thus entailing the reverse discrimination of EU investors in Europe. On the other hand, investor-state tribunals are not entitled to make preliminary reference to the CJEU. In such a situation investment tribunals may have to rule on EU law which could be regarded as an infringement of the exclusive power of the CJEU to interpret EU law. Finally, the inclusion of ISDS itself in future IIAs is under scrutiny because of the degree of latitude enjoyed by arbitrators under the ISDS system.

VII. Conclusions

Many questions still remain to be addressed in order to shape future European IIAs and, in general, European investment policy. Certainly, after initial reluctance to take a clear position on a wide range of crucial issues, the Commission, with the support of the European Parliament, seems to be moving in the right direction. The proposed regulation on financial responsibility is a logical step forward in defining the emerging European international investment policy, the contours of which are beginning to emerge.

Ruggiero Cafari Panico

Ruggiero Cafari Panico is Professor of European Union Law at the University of Milan, where he also teaches Competition Law. His practice focuses on European Union Law as well as Transnational Commercial Law, with particular emphasis on Competition Law and Discipline of foreign investments. He is a member of supervisory boards of international companies. He is the author of several publications on different topics on private international, competition and arbitration law.

[1] European Parliament legislative resolution of 16 April 2014 on the proposal for a regulation of the European Parliament and of the Council establishing a framework for managing financial responsibility linked to investor-state dispute settlement tribunals established by international agreements to which the European Union is party (P7_TA-PROV(2014)0419).

[2] European Commission, Proposal for a regulation of the European Parliament and of the Council establishing a framework for managing financial responsibility linked to investor-state dispute settlement tribunals established by international agreements to which the European Union is party (COM(2012)335).

[4] Regulation (EU) No 1219/2012 of the European Parliament and of the Council of 12 December 2012 establishing transitional arrangements for bilateral investment agreements between Member States and third countries, OJ L 351, 20.12.2012, p. 40-46.

[10] Frank Hoffmeister, Litigating against the European Union and Its Member States – Who Responds under the ILC’s Draft Articles on International Responsibility of International organizations?, The European Journal of International Law Vol. 21 no. 3 (2010).

[11] European Commission, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, Towards a comprehensive European international investment policy (COM(2010)343).

[13] Investment Arbitration Reporter (IAreporter.com), European Commission’s DG Trade tries to intervene for first time in an extra-EU BIT case to offer “systemic” views, but ill-timed application is rejected, July 9, 2014.

[20] Mark A. Clodfelter, The Future Direction of Investment Agreements in the European Union, 12 Santa Clara Journal of International Law 159 (2014), pages 174-175.

The Center for Transnational Litigation and Commercial Law aims at the advancement of the study and practice of international business transactions and the way to solve related disputes either through litigation or arbitration. As commercial transactions become increasingly international, it is vital to the legal and business communities to understand and analyze the practices and legal principles that govern relationships between firms and between firms and consumers in the international arena